Board of Mgrs. of 325 Fifth Ave. Condominium v Continental Residential Holdings LLC 2016 NY Slip Op 31230(U)  June 27, 2016  Supreme Court, New York County  Docket Number: 154764/12  Judge: Kelly A. O’Neill Levy is a very dense luxury high rise construction case arising from a building on 5th Avenue in Manhattan.  Justice O’Neill Levy briskly takes on a number of motion sequences involving a caption that takes up the entire page.  Interestingly, the case started with a summons with notice, which is a weak branch upon to rest this weak balcony case.

For our niche point of view, all the claims against the attorneys were dismissed as duplicitive of the legal malpractice claim.

“Plaintiff The Board of Managers of 325 Fifth Avenue Condominium (plaintiff) is an association of condominium apartment owners and is responsible for managing the condominium’s affairs. This is an action to recover damages for alleged construction defects, including: the balconies, the lack of vertical fire stops, loose support for the suspended piping in the mechanical room, missing or improperly installed floor and deck mounted vibration isolation systems, and improper design of the concrete floor slab in the mechanical penthouse. Prior to commencing this lawsuit, in exchange for the sum of$900,000.00, on May 17,2011, plaintiff executed a release of its balcony claims against the sponsor defendants. Plaintiff has also sued; the Board’s former counsel, Wolf Haldenstein for legal malpractice, the Cantor Seinuk defendants, as the engineer of record during the construction of the building, and FS Project Management, which was retained in 2009 by the then-sponsor controlled Board to investigate the balconies and to supervise replacement of the building’s glass panels and reinstall the balcony rails. The defendants have cross-claimed against each other. The complaint sets forth a total of 16 causes of action. The first and second causes of action against the sponsor defendants are for breach of contract. The third cause of action against all of the defendants is for breach of fiduciary duty. The fourth cause of action against all of the defendants is for fraud. The fifth cause of action against all of the defendants is for constructive fraud. The sixth cause of action against the sponsor defendants is for fraudulent inducement of the release. The seventh cause of action against Cantor Seinuk is for aiding and abetting the fraudulent inducement of the release. The eighth cause of action against FS Project Management is for aiding and abetting fraudulent inducement of the release. The ninth cause of action against FS Project Management is for breach of contract. The tenth cause of action against FS Project Management is for fraud. The eleventh cause of action against FS Project Management is for breach of fiduciary duty. The twelfth cause of action against FS Project Management is for breach of contract. The thirteenth cause of action against non-movant Basonas Construction Corp. is for breach of contract. The fourteenth cause of action against Wolf Haldenstein is for legal malpractice. The fifteenth cause of action against the sponsor defendants is for a declaratory judgment. The sixteenth, and final cause of action, against all of the defendants is for civil conspiracy. ”

“The breach of fiduciary duty, fraud, and constructive fraud claims, based upon Wolf Haldenstein’ s alleged failure to abide by general professional standards, must be dismissed, as they are all merely redundant of the legal malpractice claim. The alleged breaches “arose out of the same facts as the legal malpractice claim and did not involve any damages that were separate and distinct from those generated by the alleged malpractice” (Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 143 [I st Dept 2013]). Plaintiffs fail to plead their causes of action for fraud with sufficient specificity (CPLR 3016 [b]). No additional promise or duty on the part of Wolf Haldenstein is alleged which would extend beyond the duty a law firm owes its client. Nor is a fraud claim supported by plaintiffs conclusory allegations that Wolf Haldenstein was engaged in a scheme to deceive. Those allegations merely evidence plaintiffs’ dissatisfaction with the sum of money they received for executing the release. In addition, New York does not recognize a conspiracy to commit a tort as a separate cause of action (Brackett v Griswold, I 12 NY 454, 467 [1889]).

Finally, punitive damages are not available in an ordinary legal malpractice case (Walker v Sheldon, 10 NY2d 401, 405 [1961]). The pleading elements required to state a claim for punitive damages as an additional and exemplary remedy when the claim arises from a breach of contract are: (I) defendant’s conduct must be actionable as an independent tort; (2) the tortious conduct must be of an egregious nature; (3) the egregious conduct must be directed to plaintiff; and (4) it must be part ofa pattern directed at the public generally (New York Univ. v Continental Ins. Co., 87 NY2d 308, 316 [1995]). Clearly, the conduct alleged against Wolf Haldenstein is neither egregious, nor directed at the public generally. Therefore, Wolf Haldenstein’s motion, pursuant to CPLR 3211 (a) (7), for an order dismissing the third, fourth, fifth and sixteenth causes of action, and dismissing the claim for punitive damages (motion sequence number 002), must be granted. “